Data Processing Agreement
Last updated: July 29, 2022
This Data Processing Agreement ("DPA") is an addendum to the Customer Terms of Service ("Agreement") between Jiří Mayer ("Unisave") and the Customer. This DPA includes and incorporates by reference the annexes and addenda referenced at the bottom of this document. All capitalized terms not defined in this DPA shall have the meanings set forth in the Agreement. Customer enters into this DPA on behalf of itself and, to the extent required under Data Protection Laws, in the name and on behalf of its Authorized Affiliates (defined below).
The parties agree as follows:
"Affiliate" means an entity that directly or indirectly Controls, is Controlled by or is under common Control with an entity.
"Authorized Affiliate" means any of Customer Affiliate(s) permitted to or otherwise receiving the benefit of the Services pursuant to the Agreement.
"Control" means an ownership, voting or similar interest representing fifty percent (50%) or more of the total interests then outstanding of the entity in question. The term "Controlled" shall be construed accordingly.
"Controller" means an entity that determines the purposes and means of the processing of Personal Data.
"Customer Data" means any data that Unisave and/or its Affiliates processes on behalf of Customer in the course of providing the Services under the Agreement.
"Data Protection Laws" means all data protection and privacy laws and regulations applicable to the processing of Personal Data under the Agreement, including, where applicable, EU Data Protection Law.
"EU Data Protection Law" means (i) prior to May 25, 2018, Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of Personal Data and on the free movement of such data ("Directive") and on and after May 25, 2018, Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data (General Data Protection Regulation) ("GDPR"); and (ii) Directive 2002/58/EC concerning the processing of Personal Data and the protection of privacy in the electronic communications sector and applicable national implementations of it (in each case, as may be amended, superseded or replaced).
"Personal Data" means any Customer Data relating to an identified or identifiable natural person to the extent that such information is protected as personal data under applicable Data Protection Law.
"Processor" means an entity that processes Personal Data on behalf of the Controller.
"Processing" has the meaning given to it in the GDPR and "process", "processes" and "processed" shall be interpreted accordingly.
"Security Incident" means any unauthorized or unlawful breach of security that leads to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Personal Data.
"Services" means any product or service provided by Unisave to Customer pursuant to and as more particularly described in the Agreement.
"Sub-processor" means any Processor engaged by Unisave or its Affiliates to assist in fulfilling its obligations with respect to providing the Services pursuant to the Agreement or this DPA. Sub-processors may include third parties or any Unisave Affiliate.
2. Scope and Applicability of this DPA
2.1 This DPA applies where and only to the extent that Unisave processes Personal Data on behalf of the Customer in the course of providing the Services and such Personal Data is subject to Data Protection Laws of the European Union, the European Economic Area and/or their member states, Switzerland and/or the United Kingdom. The parties agree to comply with the terms and conditions in this DPA in connection with such Personal Data.
2.2 Role of the Parties. As between Unisave and Customer, Customer is the Controller of Personal Data and Unisave shall process Personal Data only as a Processor on behalf of Customer. Nothing in the Agreement or this DPA shall prevent Unisave from using or sharing any data that Unisave would otherwise collect and process independently of Customer's use of the Services.
2.3 Customer Obligations. Customer agrees that (i) it shall comply with its obligations as a Controller under Data Protection Laws in respect of its processing of Personal Data and any processing instructions it issues to Unisave; and (ii) it has provided notice and obtained (or shall obtain) all consents and rights necessary under Data Protection Laws for Unisave to process Personal Data and provide the Services pursuant to the Agreement and this DPA.
2.4 Unisave Processing of Personal Data. As a Processor, Unisave shall process Personal Data only for the following purposes: (i) processing to perform the Services in accordance with the Agreement; (ii) processing to perform any steps necessary for the performance of the Agreement; and (iii) to comply with other reasonable instructions provided by Customer to the extent they are consistent with the terms of this Agreement and only in accordance with Customer’s documented lawful instructions. The parties agree that this DPA and the Agreement set out the Customer’s complete and final instructions to Unisave in relation to the processing of Personal Data and processing outside the scope of these instructions (if any) shall require prior written agreement between Customer and Unisave.
2.5 Nature of the Data. Unisave handles Customer Data provided by Customer. Such Customer Data may contain special categories of data depending on how the Services are used by Customer. The Customer Data may be subject to the following process activities: (i) storage and other processing necessary to provide, maintain and improve the Services provided to Customer; (ii) to provide customer and technical support to Customer; and (iii) disclosures as required by law or otherwise set forth in the Agreement.
2.6 Unisave Data. Notwithstanding anything to the contrary in the Agreement (including this DPA), Customer acknowledges that Unisave shall have a right to use and disclose data relating to and/or obtained in connection with the operation, support and/or use of the Services for its legitimate business purposes, such as billing, account management, technical support, product development and sales and marketing. To the extent any such data is considered personal data under Data Protection Laws, Unisave is the Controller of such data and accordingly shall process such data in compliance with Data Protection Laws.
3.1 Authorized Sub-processors. Customer agrees that Unisave may engage Sub-processors to process Personal Data on Customer's behalf. The Sub-processors currently engaged by Unisave and authorized by Customer are listed in Annex A.
3.2 Sub-processor Obligations. Unisave shall: (i) enter into a written agreement with the Sub-processor imposing data protection terms that require the Sub-processor to protect the Personal Data to the standard required by Data Protection Laws; and (ii) remain responsible for its compliance with the obligations of this DPA and for any acts or omissions of the Sub-processor that cause Unisave to breach any of its obligations under this DPA.
3.3 Changes to Sub-processors. Unisave shall provide Customer reasonable advance notice (for which email shall suffice) if it adds or removes Sub-processors.
3.4 Objection to Sub-processors. Customer may object in writing to Unisave’s appointment of a new Sub-processor on reasonable grounds relating to data protection by notifying Unisave promptly in writing within five (5) calendar days of receipt of Unisave’s notice in accordance with Section 3.3. Such notice shall explain the reasonable grounds for the objection. In such event, the parties shall discuss such concerns in good faith with a view to achieving commercially reasonable resolution. If this is not possible, either party may terminate the applicable Services that cannot be provided by Unisave without the use of the objected-to-new Sub-processor.
4.1 Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Processor shall in relation to the Customer Personal Data implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR.
4.2 In assessing the appropriate level of security, Processor shall take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach.
5. Audit Rights
5.1 Processor shall make available to the Customer on request all information necessary to demonstrate compliance with this Agreement, and shall allow for and contribute to audits, including inspections, by the Customer or an auditor mandated by the Customer in relation to the Processing of the Customer Personal Data by the Contracted Processors.
5.2 Information and audit rights of the Customer only arise under section 5.1 to the extent that the Agreement does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law.
6. Data Transfer
11.1 The Processor may not transfer or authorize the transfer of Data to countries outside the EU and/or the European Economic Area (EEA) without the prior written consent of the Customer. If personal data processed under this Agreement is transferred from a country within the European Economic Area to a country outside the European Economic Area, the Parties shall ensure that the personal data are adequately protected. To achieve this, the Parties shall, unless agreed otherwise, rely on EU approved standard contractual clauses for the transfer of personal data.
7. Return or Deletion of Data
7.1 Upon deactivation of the Services, all Personal Data shall be deleted, save that this requirement shall not apply to the extent Unisave is required by applicable law to retain some or all of the Personal Data, or to Personal Data it has archived on back-up systems, which such Personal Data Unisave shall securely isolate and protect from any further processing, except to the extent required by applicable law.
8.1 To the extent that Customer is unable to independently access the relevant Personal Data within the Services, Unisave shall (at Customer's expense) taking into account the nature of the processing, provide reasonable cooperation to assist Customer by appropriate technical and organizational measures, in so far as is possible, to respond to any requests from individuals or applicable data protection authorities relating to the processing of Personal Data under the Agreement. In the event that any such request is made directly to Unisave, Unisave shall not respond to such communication directly without Customer's prior authorization, unless legally compelled to do so. If Unisave is required to respond to such a request, Unisave shall promptly notify Customer and provide it with a copy of the request unless legally prohibited from doing so.
8.2 To the extent Unisave is required under Data Protection Law, Unisave shall (at Customer's expense) provide reasonably requested information regarding Unisave's processing of Personal Data under the Agreement to enable the Customer to carry out data protection impact assessments or prior consultations with data protection authorities as required by law.
9.1 Except for the changes made by this DPA, the Agreement remains unchanged and in full force and effect. If there is any conflict between this DPA and the Agreement, this DPA shall prevail to the extent of that conflict.
9.2 This DPA is a part of and incorporated into the Agreement so references to "Agreement" in the Agreement shall include this DPA.
9.3 In no event shall any party limit its liability with respect to any individual's data protection rights under this DPA or otherwise.
9.4 This DPA shall be governed by and construed in accordance with governing law and jurisdiction provisions in the Agreement, unless required otherwise by Data Protection Laws.
Annex A - List of Unisave Sub-processors
|Stripe||Payment processor||USA, Ireland||https://www.stripe.com/|
|Fakturoid||Invoice management||Czech Republic||https://www.fakturoid.cz/|
|Mailgun||Email service provider||USA||https://www.mailgun.com/|
|Mailchimp||Email service provider||USA||https://mailchimp.com/|
|Website traffic analytics||USA, Ireland||https://www.google.com/|